Análise da inconstitucionalidade do artigo 305 do código de trânsito brasileiro

• Autor(a) principal: Menezes, Jorge Henrique
• Data de Publicação: 2011
• Tipo de documento: Trabalho de conclusão de curso
• Idioma: por
• Título da fonte: Repositório Universitário da Ânima (RUNA)
• Texto Completo: https://repositorio.animaeducacao.com.br/handle/ANIMA/5534
• topic: Inconstitucionalidade; Controle de constitucionalidade; Direitos fundamentais

The State, that we had the obligation to punish and control, can not use any pretext to this presumption, without observing the rights and fundamental principles of the proceeding or criminal investigation. The Government Legislature, in this view, when it creates an article of the law to require the auto driver to remain at the scene and thus incriminate themselves. This is the case with Article 305 of the Brazilian Traffic Code that legitimizes the hardness of the state. Meanwhile, there are legal mechanisms to oppose these harmful attitudes promoted by the state, such as the declaration of unconstitutionality that through an application process itself incidental crime, where the rule no longer apply to the case and applied by through direct action of unconstitutionality or support of non-compliance of the legal rule, when it ceases to exist in the law of the country. The overall objective is to analyze the lack of constitutionality of Article 305 of the Brazilian Traffic Code confronted by the principle of innocence and have the right not to produce evidence against him. As a result, the research method used was deductive, taking as a starting point to verify the content of Article 305 of the Brazilian Traffic Code in order to point out the fundamental rights in the Federal Constitution, dealing with the protection of the author of accident automobile and demonstrate the need to keep them without damage, under pain of hurting the highest law of our legal order, concluding a particular view about the study theme. As a result found, is that Article 305 of the CTB confronts the device of Article 5, LV, LVII and LXIII of CF/88, based on the principle of defense, the presumption of innocence and the right to silence derived from the principle nemo tenetur se detegere, we demonstrate its opposition to the supremacy of the Constitution and therefore not revealed as constitutional. Thus, one can conclude that the State has the duty and power to punish in cases of escape of the driver of the accident site so that it is guaranteed not to produce evidence against himself and be treated as innocent until the limit of time for appeal of the criminal sentence, it being reserved the right to silence.